JUDGMENT R.B. Mehrotra, J.
1. The present appeal is directed against the judgment dated 10-7-78 passed by Sri S. S. Gupta, Fifth Additional District and Sessions Judge, Varanasi in Sessions Trial No. 177 of year 1977 convicting the appellants Mirza, Kishore, Ram Bala alias Ram Bal, son of Mirza, Multaz, Sukhpal, Algauj, Ramdhari, Nithohar, Bansu, Ram Kewal, Swaroop, Keshav, Sriram, Phaggu and Banarasi, and sentencing them for life imprisonment under Section 302/149 I.P.C., for 5 years rigorous imprisonment under Section 324/149 I.P.C. and one year rigorous imprisonment Under Section 323/149 I.P.C. after holding them guilty of the abovementioned charges.
2. Abovementioned appellants/accused Paras, Sriram, Phaggu and Banarasi have been found guilty on the charge under Section 148 I.P.C., convicted and sentenced to two years rigorous imprisonment, and the remaining 4 appellants have been found guilty on the charge under Section 147 I.P.C., convicted and sentenced to one year rigorous imprisonment. The above sentences have been directed to run concurrently.
3. It is admitted to parties that appellant Mirza is dead consequently his appeal has abated.
4. According to prosecution on 26-7-70 at 7 A. M. morning when Ram Satan and his brother Ramjag resident of village Negura, P. S. Dhanapur, district Varanasi were going for plantation to pumping set Madwa and had reached their field, from left side sugarcane field, south side "Behaya" hiding accused Phaggu, Mumtaz, Sukhpal sons of Mirza, Sriram son of Vishvanath, Paras son of Sri Narayan, Banarasi, Bansu sons of Patiraj, Swaroop, Kishore sons of Satnu, Algauz, Ramdhari son of Visheshar, Ram Bala, Ram Kewal sons of Mirza, Doman and Keshav son of Ram Iqbal residents of that village being on terms of litigation of land of Ramsatan, armed with lathi, ballam, Gandasa and Pistol surrounded Ramsatan and his brother and began to assault them. Mirza was exhorting to kill. On alarm, Nanhu s/o Ramdas, Thakurdayal s/o Ramjatan and mother of Ramsatan reached the spot. The appellants beat them also. In the meantime Vishun, Balkishun sons of Shiodhan, Fatte son of Nanhu, Sahatu son of Ramdas Bind and many others came there and saw this occurrence. Ramjag was killed at the spot itself, rest victims were given thrashing and accused persons fled away. At the time of occurrence Sriram and Paras were armed with pistol, Phaggu with Gandasa, Banarasi with Ballam and Mirza with lathi. Ramjag was done to death on account of infliction of injuries with these weapons. Other remaining appellants were armed with lathi, ballam, gandasa, Ram Satan also sustained injuries from lathi, ballam, gandasa. Ramsatan etc. tried to escape, however, the appellants surrounded them at the field of Sri Singh and began to beat them.
5. The first information report of the above occurrence was lodged by Ram Satan son of Subhag on 26-7-77 at 10-15 A. M. day at P. S. Dhanapur, pargana Chandauli, district Varanasi.
6. The post mortem on the dead body of Ramjog was performed by Dr. S. K. Gupta, Medical Officer S. S. P.O. hospital Varanasi on 27-7-77 at 2'0' clock noon. In the autopsy, undermentioned ante mortem injuries were found on the body of the deceased.
(1) Lacerated wound 7 cm x 3 cm x 2 cm deep up to bone on the middle portion of forehead. The injury was above the nose in horizontal position.
(2) Two lacerated wound 1 cm x l/2 cm x bone deep on nose. Second 1 1/2 cm x 1 cm x 2 cm deep on the nose with fracture of a portion of the nosal bone.
(3) Lecerated wound 2 1/2 cm x 1 cm x 1 1/2 cm bone deep below the left eye on the left side of face.
(4) Lacerated wound 1 cm x 1/2 cm skin deep 2 cm below the left eye brow on the left side face.
(5) Contusion would with abrasion 2 cm x 1/2 cm 2 cm below right eye on the right side of face.
(6) Lecerated wound 2 1/2 cm x 1 cm bone deep on left side of jaw on lower portion tearing the skin.
(7) Abrasion 1 cm x 1/2 cm on the middle finger of the left hand.
(8) Incised wound 2 1/2 cm 1/2 cm skin deep in the middle of right knee.
(9) 3 incised wounds in an area of 11 cm x 6 cm behind right leg, the smallest being 2 1/2 cm x 1/2 cm x 1/2 cm, the largest being 3 cm x 1/2 cm skin deep.
(10) 2 incised wounds 2 1/2 cm in the middle portion of right knee 3 cm x 2 cm, second 2 1/2 cm x 1 1/2 cm flesh deep.
(11) Incised wound 13 cm x 5 cm bone deep resulting in complete cut of both bones, the bones were found fractured of the right leg half portion.
(12) Incised wound 5 cm x 1 cm bone deep on the posterior portion of left leg the wound being 2 cm in front of knee.
(13) Abrasion 2 cm x 1 1/2 cm on the upper portion of left thigh on the posterior side.
(14) Contusion with abrasion 17 cm x 1 cm on the posterior side of abdomen slightly on right side.
Dr. S. D. Gupta in his oral evidence proved the post mortem report before the Court and stated in his evidence "In relation to injuries 3, 4 and 5 the maxillary bones were fractured, on internal examination "Brain membranes" were congested inside the skull and the anterior cranial fossa was fractured in relation to injury No. 2."
7. According to the statement of the doctor the death of the victim was due to haemorrhage and shock as a result of the above mentioned injuries. Dr. Gupta also stated in his evidence that he cannot say whether the injuries Nos. 8, 9 could be result of penetration of Ballam. If injury is inflicted by Ballam it is not necessary that depth of injury should be more as Ballam can traverse by inflicting injury through side. He expressed inability to vouchsafe conclusively whether injuries 8, 9 could be result on the penetration of Ballam in the body. According to him the injuries 8 to 12 of the deceased could be result of any sharp weapon including gandasa also.
8. For the purpose of adjudication in this appeal it is not necessary to write down the injuries sustained by the other witnesses.
9. The prosecution in order to prove its case examined PW-1 Ram Satan, PW-2 Sathu, PW-3 Thakurdayal, PW-4 Rajendra Prasad Raj and Police Constable Virendra Nath Rai, PW-5, Mohammad Jafri PW-6, Vishvambhar Bind, PW-7, Investigating Officer Sri Aditya Giri, Sub-Inspector PW-8, Dr. Tej Bahadur PW-9, Ram Briksha Singh PW-10 and Dr. S. K. Gupta PW-11. Out of the above witnesses, P.Ws. Ramsatan, Sathu, Thakurdayal and Vishvambhar have been examined as eye witnesses.
10. The above mentioned witnesses have supported the prosecution case in all material points. The remaining witnesses Rajendra Prasad Rai is head constable of Dhanapur, has been examined to prove the first information report Ex.Ka.-2. and he also proved the G. D. Entry Ex. Ka.-3 and also the G. D. dated 27-7-70 pertaining to deposit of three sealed bundles. PW-8 Sri Aditya Giri is investigating officer and has proved the papers pertaining to injuries etc. of deceased, prepared the spot plan and mentioned about the recording of the statement of witnesses during investigation. The consideration of the evidence of such witnesses will be made later as and when necessary.
11. Sri Anand Deo Giri, Senior Advocate, and Sri Gopal Chaturvedi learned counsel for the appellants and Additional Government Advocate and Sri Jagdish Singh Sengar for the prosecution have been heard at length in this appeal.
12. The learned counsel for the appellant has not assailed the finding of the District and Sessions Judge regarding the correctness of the factum of occurrence as a result of the evaluation of evidence of prosecution and has admitted that the prosecution has succeeded in proving the occurrence to the extent that at that occurrence the death of Ramjag occurred as a result of participation by some of the accused and some witnesses also admitted that sustained injuries. However the main thrust of the argument of the learned counsel for appellant is that the injuries to deceased Ramjag and other-witnesses were not caused in the manner alleged by the prosecution and that the prosecution has been able merely to establish the offence under Section 323/149, Indian Penal Code against the appellants. The punishment imposed on the appellants under other sections is illegal and liable to be set aside.
13. Out of the points raised by the appellants, the main submission is, that all the appellants have not been charged under Section 302/149, I.P.C., as per evidence, rather five accused persons namely Sriram, Banarasi, Paras, Phagu and Mirza have been specifically charged for having caused the murder of Ramjag, and the other appellants were charged merely for other sections. On this score, the contention of the learned counsel for the appellants is that so far as the offence under Section 302/149, I.P.C. is concerned, that charge can be considered only in respect of the above mentioned five persons, other persons cannot be convicted for the said offence, since other accused persons were never charged under Section 302/149, I.P.C.
14. For testing the arguments of the learned counsel for the appellant in the right perspective it is necessary to give a discription of the three charges which have been framed against the accused persons. The three charges are set out in the judgment and for appreciating the arguments of the appellants, the same are being reproduced below charges (Ist charge).
I, S. S. Gupta VI Additional District and Sessions Judge, Varanasi hereby charge you:-
1. Mirza, 2. Kishore, 3. Rambala alias Ram Bal, 4. Mumtaz, 5. Sukhpal, 6. Algoj, 7. Ramdhari, 8. Nithohar, 9. Banshu, 10. Ramkawal, 11. Swarup, 12. Keshav, 13. Sriram, 14. Paras, 15. Phagu, and 16. Banarasi as follows:
Firstly, that you on 26-7-77 at about 7 A.M. in village Nagura, P.S. Dhanapur, District Varanasi in prosecution of the common object of the unlawful assembly on which all of you were member, you Sriram, Paras, Phagu, Banarasi and Mirza, did commit the murder by intentionally or knowingly causing the death of Ramjag, and thereby all of you committed an offence punishable under Section 302 I.P.C., read with Section 149 I.P.C. and within the cognizance of this Court.
Secondly that on the same date, time and place in prosecution of the common object of the said unlawful assembly of which all of you were members, some of you voluntarily caused grievous hurt to Ramsatan and thereby committed an offence punishable under Section 325/149, I.P.C. and within the cognizance of this Court.
Thirdly, that you on the same day, time and place in prosecution of the common object of the said unlawful assembly of which all of you were members, some of you voluntarily caused hurt to Ram Satan by means of Ballam and Gandasa i.e. a sharp pointed and cutting weapons, which are instruments of stabbing and cutting, and thereby all of you committed an offence punishable under Section 324/149, Indian Penal Code and within the cognizance of this Court.
Fourthly, on the same date, time and place, in prosecution of the common object of the said unlawful assembly of which all of you were members, some of you voluntarily caused hurt to Nanhu by means of a Gandasa, which is an instrument of cutting and thereby committed an offence punishable Under Section 324/149 I.P.C. and within the cognizance of this Court.
Fifthly, that on the same date, time and place, in prosecution of the common object of the said unlawful assembly of which all of you were members, some of you voluntarily caused hurt to Thakur Dayal by means of a Gandasa, which is an instrument of cutting and thereby committed an offence punishable under Section 324 I.P.C. and within the cognizance of this Court.
Sixthly, that you on the same date, time and place, in prosecution of the common object of the said assembly of which all of you were members, some of you voluntarily caused hurt to Ram Satan and thereby committed an offence punishable under Section 323/149 I.P.C. and within the cognizance of this Court.
Seventhly, that you on the same date, time and place in prosecution of the common object of the said unlawful assembly of which all of you were members, some of you voluntarily caused hurt to Smt. Bachia, and thereby all of you committed an offence punishable under Section 323/149 Indian Penal Code and within the cognizance of this Court.
VIIIthly that you on the same date, time and place in prosecution of the common object of the said Unlawful assembly, of which all of you were members, some of you voluntarily caused hurt to Nanhu and thereby all of you committed an offence punishable under Section 323/149 I.P.C. and within the cognizance of this Court.
IX thly, that you on the same date, time and place, in prosecution of the common object of the said unlawful assembly, of which all of you were members, some of you voluntarily caused hurt to Thakur Dayal, and thereby all of you committed an offence punishable under Section 323/149 I.P.C. and within the cognizance of this Court.
And I hereby direct that you be tried by this Court on the said charges.
II Charge.
I, S. S. Gupta, VI Additional Distt. and Sessions Judge, Varanasi hereby charge you 1. Mirza, 2. Kishore; 3. Rambala alias Rambal, 4. Multaz, 5. Sukhpal, 6. Algoj, 7. Ramdhari, 8. Nithohar, 9. Banshu, 10. RamKewal, 11. Swarup, 12. Keshavas follows:-
That you on 26-7-77 at about 7 A.M. in village Negura, P. S. Dhanapur, Distt. Varanasi were members of an unlawful assembly along with Sriram, Paras, Phagu and Banarasi, and did, in prosecution of the common object of the said assembly i.e. to commit the murder of Ramjag as to beat Ram Shatan, committed the offence of rioting and thereby committed an offence punishable under Section 147 I.P.C. and within the cognizance of this Court.
And I hereby direct that you be tried by this Court on the said charge.
III Charge.
I, S. S. Gupta, VI Additional Distt. and Sessions Judge, Varanasi hereby charge you 1. Sriram, 2. Paras, 3. Phagu and 4. Banarasi as follows:-
That you on 26-7-77 at about 7 A.M. in village Negura, P.S. Dhanapur, Distt. Varanasi were members of an unlawful assembly along with Mirza, Kishore, Rambala alias Ram Bal, Multaz, Sukhpal, Anmol, Ramdhari, Nithohar, Banshu, Ramkawal, Swarup and Keshav, and did, in prosecution of the common object of the said Assembly i.e. to commit the murder of Ramjag and to beat Ram Shatan committed the offence of rioting and at that time you were armed with deadly weapons i.e. Sriram and Paras with pistols, Phagu with Gandasa and Banarasi with. Ballam and thereby committed an offence punishable under Section 148 I.P.C. and within the cognizance of this Court.
And I hereby direct that you be tried by this Court on the said charge.
15. Before considering the arguments of Sri Giri learned counsel for the appellants, it is necessary to advert to the relationship inter se of the appellants, the same being essential from the point of view of counsel. According to him it is proved from evidence that appellants Mirza, Ramkewal, Nithohar, Rambal, Phaggu, Sukhpal, Multaza, Sriram, Algoj, Ramdhari are of one family. According to learned counsel for the appellant the case of the prosecution that the appellants are of one family and interrelated is not correct. In that connection, the learned counsel for the appellant invited the attention of this Court to the factual position that according to the first information report appellants accused persons Mirza, Paras, Ramkewal, Ramphal, Banarasi, Algauj, Ramdhari and Sriram came out from the side of sugarcane field attacked Ramjag and grievously injured Ramsatan and from the other side that is from the side of "Behaya" (Shrub) rest of the accused persons came out and attacked the aforesaid persons. It is established from the evidence of Ramsatan, Prosecution witness No. 1 that deceased and his brother Ramsatan were on inimical terms with accused persons from before.
In the context and background mentioned above, the learned counsel for the appellants has advanced the argument that when on the admitted position of enmity between the prosecution and the defence, many persons having been charged for the occurrence, then the circumstances entail discussion of the point whether all the persons participated in the manner as set out by the prosecution or there could be some other position also, and names of some persons could be wrongly mentioned or some persons can be roped in on wrong premises. In the light of the above background that analysis of the evidence of the prosecution as submitted by the learned counsel for appellant is being mentioned in seriatum herewith.
According to the first information "Mirza accused was exhorting to kill. Sriram and Paras had pistol, Phaggu had Gandasa, Banarasi had Ballam and Mirza had lathi. On account of their attack, the brother lost his life. This report was got lodged by Ram Satan the real brother of deceased Ramjag. It is mentioned thereafter in the report that the remaining other accused persons had lathi, Ballam and Gandasa. Ramsatan witness has also received grievous injuries. He has been examined as an injured witness. Before the Court in his deposition Ramsatan stated that Siyaram had pistol/ballam, Paras had pistol and Ballam Banarasi has ballam and rest of the persons had lathis. Paras and Siyaram fired two shots in the air and Mirza said "kill." This witness has made clear that Siyaram is also called Sriram and further stated" When we wanted to run away, then from Behaya (shrub) side Nithohar with lathi, Phaggu with Gandasa, Multaza and Bansu with lathi, Kishore with Gandasa, Swarup and Keshav with lathi, emerged out and after surrounding me and Ramjag began to beat in the field of Sri Singh." In this reference the point worth mention simply is this as pointed by appellant counsel that the statement given by Ram Satan before the Court was different from the first information report lodged by Ramsatan. In the statement Paras has been described as being armed with Ballam along with pistol. In the same fashion, Sriram has been stated to be armed both with pistol and Ballam while in the first information report the said accused persons were described to be having only pistol,
16. The learned counsel for the appellant invited the attention of Court to the statement made by Ram Satan in Court regarding the other fact that in the first information report only five persons were accused the role of being armed with weapons, while for remaining appellants accused persons no description was given as to which accused was armed with what weapon.
17. The third contradiction between the statement of Ram Satan in the Court and the first information report is that in the first information report Mirza is shown to be armed with lathi, while in the Court the version is that there was no weapon in the hand of Mirza, rather he is stated to be merely exhorting. However, so far as Mirza is concerned his appeal has abated as already mentioned hence it is not necessary to consider about his role in this appeal. The learned counsel for the appellant while analysing the first information report asserted that according to the prosecution case itself only 5 accused persons namely Sriram, Paras, Phaggu, Banarasi and Mirza were responsible for the death of Ramjag, that is why the injuries caused by the aforesaid persons has been denoted to be the cause of death of Ramjag.
18. The five accused persons who have been given the role of causing injuries to Ramjag resulting in his death as per first information report, out of those five persons Sriram, Paras armed pistol, Phaggu armed with Gandasa, Banarasi armed with ballam and Mirza armed with Lathi have been mentioned.
19. In this very seriatum, the learned counsel for the appellant invited the attention of the Court to the injuries present on the body of deceased Ramjag and on the basis of the postmortem report analysed the same as under:-
20. On the body of Ramjag five incised wounds 4 lacerated wounds and four abrasions were found. Dr. S. K. Gupta who has proved the postmortem report has stated before the Court that the antemortem injuries 8 to 12 could be caused by Gandasa. The learned counsel for the appellant on the basis of analysis of above evidence argued that even if it is held that Ramjag died in the above occurrence, even then as per charges as framed, only five accused Sriram, Paras, Phaggu, Banarasi stand charged for the offences of unlawful assembly with the common object of causing the death of, while the other accused persons have not been charged for forming unlawful assembly. In this very connection the learned counsel for the appellant also advanced the argument that it is admitted by Ramsatan that accused persons are on enmical terms with him. In this perspective it is worthy of consideration that there has been exaggeration in the evidence of Ram Satan with respect to the facts as mentioned in the first information report. According to him the evidence of Ramsatan cannot be held to be wholly reliable, at the utmost it can be held those 16 accused persons against whom the first information report has been lodged, came in different groups for attacking Ramjag and Ram Satan, however, this evidence does not prove that the aforesaid accused persons had formed the unlawful assembly for causing death. Under the circumstances accused can be punished on the basis of the injuries inflicted by them. In support of this very argument, the insistence of the learned counsel for the appellant is that in this light there should be analysis of the framed charges dated 2-12-77-described above.
21. According to learned counsel for appellants the above mentioned only five accused persons have been charged under Section 302 read with Section 149 I.P.C. for having formed unlawful assembly to cause death, while the remaining accused persons have been charged only for forming unlawful assembly to cause grievous and simple hurt. While analysing the evidence with respect to above mentioned five accused persons the learned counsel for appellants put forth the argument that no mark of pistol injury was found on the body of deceased Ramjag. Under the circumstances utmost it can be held that accused appellants Sriram and Paras were possessed of pistol at the time of occurrence, however, they did not make any use of pistol nor caused any injury by pistol to deceased Ramjag or injured witness Ramsatan. Under the circumstances according to prosecution evidence there is no proof that the above mentioned two accused persons had formed unlawful assembly at the spot for causing death. At the almost it can be held that the aforesaid two accused persons were present on the spot by forming unlawful assembly for causing injuries to deceased Ramjag and witness Ram Satan. In this very seriatum by analysing medical evidence the learned counsel for the appellants submitted that out of the injuries sustained by deceased Ramjag no incised penetrating wound was found so as to prove that any accused dealt with ballam blow on his body. Out of the five accused persons Banarasi is stated to possess Ballam. There being no infliction of Ballam injury the inference is that accused Banarasi did not use Ballam to kill Ramjag. On this score even Banarasi cannot be punished for formation of unlawful assembly with the object of causing death. So far as the use of Gandasa by Phaggu is concerned, the learned counsel for the appellant submitted that as per medical evidence the injuries Nos. 8 to 12 found on the body of deceased by Gandasa are not on vital parts, but have been inflicted on such parts of body as a result of which the death of deceased was not natural. On this footing the argument of learned counsel for appellants is that aforesaid Phaggu who has been alleged to have Gandasa in first information report, does not deserve to be punished for formation of unlawful assembly for causing death. The injuries inflicted on the vital parts of the body of deceased have all been caused by lathi, hence at the utmost Mirza appellant accused who according to F.I.R. was armed with lathi can be held to be guilty of causing the death of Ramjag by lathi.
22. With respect to the above analysis the learned counsel for the appellant further submitted that the one witness Vishambhar who has been given the role to implicate all accused persons beating Ramjag and has been examined as prosecution witness, is not reliable to be believed on the ground that his name has not been mentioned in the first information report. The investigating Officer has for the first time recorded his statement under Section 161 Cr.P.C. Investigating Officer has given out in his deposition that Vishavambhar told him that he had seen the occurrence from a distance of 200 yards. Vishvambhar has deposed before the Court that he had not given any such statement before the investigating Officer. This witness in para 9 of his deposition has falsely got recorded that the dead body of the deceased had been taken to police station, while according to the prosecution the panchayatnama of dead body was performed at the spoy and the dead body straightway sent to the concerned medical officer for post mortem report. According to the learned counsel for the appellant, witness Vishvambhar has been set up by the prosecution merely to make up the deficiencies of other witnesses for the prosecution. The name of Vishvambhar did not figure even in the first information report and the statement given before the Court is contradictory to the statement got recorded by Vishvambhar under Section 161 Cr. P. C. In support of this argument, the learned counsel for the appellants relied on the ratio of Yudhishther v. State of Madhya Pradesh, .
23. On the basis of the above analysis the argument of learned counsel for the appellant is that if it is held that at the time and place mentioned in the first information report, the death of Ramjag was caused by infliction of injuries by accused persons and the injured witness Ramsatan sustained grievous injuries, then utmost the above accused persons can be punished under Section 323/324/147/148 etc. There is no justification to punish all the accused persons under Section 302 read with 149 I.P.C. In this very sequence the learned counsel for the appellants also raised the plea that apart from the five accused persons whose names have been mentioned above no other accused was charged under Section 302 read with 149 I.P.C. nor opportunity was accorded under Section 313 Cr. P. C. so that they may clarify that they had formed unlawful assembly to cause death. In this connection the learned counsel for the appellants invited the attention of Court to the statement of accused persons at pages 10, 11 and 12 and on the basis of the said facts raised the plea that unless the accused persons are given opportunity to explain the charges levelled against them, the conviction for aforesaid charges is not sustainable in the eye of law.
24. In support of the above submissions, the learned counsel for the appellant cited undermentioned decision of the Supreme Court.
1. Chikranj Ganda v. Mysore State, .
2. Pandurang v. State of Hyderabad, .
3. Shambhunath Singh v. State of Bihar, .
4. Sharman Singh v. State of Punjab, (Sic) .
5. Santosh v. State of Madhya Pradesh, .
Before analysing the above decisions it is essential to examine the submissions of the learned counsel for the appellants on factual basis.
25. Even if it is assumed that the evidence of prosecution witness No. 7 Vishvambhar is incredible, even then from the assessment of the other evidence led by the prosecution the fact is fully proved that the accused persons emerging from two directions in separate groups attacked deceased Ramjag and witness Ram Satan armed with Gandasa, Ballam and lathis at the same time at the spot. The differences pointed out by the learned counsel for the appellant in the first information report and the evidence produced by the prosecution are merely the differences of details and it is also possible that on the state of evidence the prosecution has added some such facts in order to improve the prosecution version, viz Sriram and Paras as per first information report being armed with pistol while in oral evidence both the accused persons are stated to be armed with Ballam along with pistol, which is notworthy of belief. In a similar manner at some places also apart from the facts mentioned in the first information report, other facts have been stated in oral evidence, which should be ignored to the extent of clearly being against the facts given in the first information report, however, if with reference to the first information report, oral evidence has been led in respect of the occurrence whereby there is clarification qua the first information report then that evidence cannot held to be incredulous merely on the ground that the said evidence has been manufactured by the prosecution later on to establish the prosecution case. In this context the argument advanced by learned counsel for the appellant that in the first information report it has been mentioned that the death of Ramjag occurred only due to injuries inflicted by only Sriram, Paras, Phaggu, Banarasi and Mirza cannot be interpreted literally word for word. That sentence is the individual assessment of the first information regarding the occurrence, however, what offence has been committed by appellants/accused persons can be determined after evaluation of all the circumstances. It has been proved to the hilt by the prosecution that at the spot accused persons emerged out from two directions at the same time armed with lathi, gandasa, and pistol and attacked deceased Ramjag and his companion Ram Satan and as a result of that attack Ramjag met his death and witness Ramsatan sustained grievous injuries. If for attacking two persons 16 persons coming from different directions present themselves at the same time armed with lathi, Gandasa and pistol and out of them barring the person holding pistol, the remaining accused persons attack some person as a result of which that person meets his death, then the point arises for consideration whether as a result of totality at proved evidence the conclusion cannot follow that all the accused persons with the common object of causing death had formed unlawful assembly. In the above circumstances this fact pales into insignificance as to which person attacked Ramjag and caused grievous injury to Ramsatan with which weapon. In the overall circumstances the formation of unlawful assembly with the common object of causing at least such injuries as are likely to cause death can be held, there is no room for holding in the light of evidence that the common object of unlawful assembly was for any other purpose.
26. So for as the admission of enmity between Ramjag and injured witness Ramsatan with accused persons is concerned, in this connection it is worthy of consideration that all the witnesses of the prosecution are independent witnesses and they are not on terms of animosity with accused persons, there is no reason to put a question mark on their evidence. Moreover the accused persons did not put any such question to any other witness except Vishvambhar, it fully proved that the accused persons having divided themselves into two groups attacked deceased Ramjag and injured witness Ram Satan, armed with lathi, gandasa and pistol at the place of occurrence on given time. What is the effect of non user of pistol by accused persons will be considered later however, it is admitted position that barring the two accused persons who were armed with pistols, remaining all other accused persons indulged in fatal attack on deceased Ramjag and injured witness Ramsatan as a result of which Ramjag died and Ramsatan sustained grievous injuries. From the overall circumstances and evidence, there remains not an iota of doubt that all the accused persons formed unlawful assembly at the spot with the common object of causing fatal injuries likely to cause death of Ramjag and with the common object of causing grievous injuries to Ramsatan and caused injuries, therefore this fact pales into insignificance as to which accused has caused injury with which weapon. Accused Sriram and Paras had gone to place of occurrence armed with pistol, they did not use the pistol, however they did not even protest against the fatal attack on Ramjag by other accused persons, and throughout remained at the place of occurrence till Ramjag met his death. Under the circumstances the fact cannot be denied that aforesaid two accused persons had formed unlawful assembly with the object of commission of offence at the spot of occurrence and the offence perpetrayed by the accused persons was of a type obviously to inflict such fatal injury which was likely to cause death and also was the offence to cause grievous hurt.
27. Now the question for consideration is whether on the basis of above evidence, all the accused persons can be punished for formation of unlawful assembly for causing death. Before considering this question, it is essential to find out as to what will be the effect for determination of guilt of accused persons in not getting clarification from the accused persons as regards the charges framed against them and non compliance of provisions of Section 313 Cr. P. C. regarding evidence and crime?
28. All the accused persons were charged in the first para of first charge and in that charge only five accused persons namely Sriram, Paras, Phaggu, Banarasi and Mirza were charged for intentionally causing the death of Ramjag and formation of unlawful assembly punishable under Section 302 I.P.C. read with Section 149 I.P.C. In other charges all the accused persons were charged for causing grievous injuries to Ramsatan under Section 325/149 I.P.C. and 324/149 I.P.C. etc., however, on the same date separately 12 accused persons namely Mirza, Kishore, Ram Bal, Multaz, Sukhpal, Algoj, Ramdhari, Nithohar, Bansu, Ramkawal and Keshav were charged under Section 147 I.P.C. for formation of unlawful assembly with the common object of causing death of Ramjag and causing grievous injuries to Ramsatan, along with accused Sriram, Paras, Phaggu and Banarasi. Similarly in the third charge Sriram, Paras, Phaggu and Banarasi were charged with other accused persons for formation of unlawful assembly with the common object to commit the murder of Ramjag, and causing grievous injuries to Ram Satan punishable under Section 148 I.P.C. Reading the three charges together, it becomes clear that all the accused persons were charged for formation of unlawful assembly with the common object of causing death of Ramjag and causing grievous injuries to Ramsatan. The argument advanced by learned counsel that only five persons have been charged for formation of unlawful assembly to commit murder of Ramjag is not worthy of acceptance. This argument runs against the tenor of facts available on record. In this very connection, the question crops up whether in the light of the above charges any prejudice has been caused to accused persons in presenting their stand or in cross examination of prosecution witness, so as to make it fatal for the prosecution side and whether the accused persons are entitled to any benefit by merely pointing out technical defect. In this connection it is pertinent to refer to Section 464 Cr. P.C. According to that provision no finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of Court, a failure of Justice has in fact been occasioned thereby.
29. It is clear from the above provision that if, for the sake of argument it is accepted that in framing charges against the accused there was some technical defect or error, even then in the present appeal the learned counsel for appellant has failed to substantiate that on account of alleged defect or error in framing the charge, any substantial injustice has been caused to the accused persons or the accused persons have been prejudiced in getting Justice. In this connection a mention deserves to be made of Section 212 Cr. P. C. all the particulars required to be given in the charge were mentioned in the charge and all the facts were mentioned in the charges framed against accused persons and if in technical manner the charges were not framed in the prescribed form as enjoined by Cr. P. C., then on the technical footing there is no justification for holding the chargesheet to be defective.
30. In continuation thereof, it is essential to refer to the statements of accused persons under Section 313 Cr. P. C. referred by learned counsel for the appellants, especially question numbers 10, 11 and 12 are being dealt with.
31. In the above mentioned evidence, there is a detailed description of the evidence led by the prosecution and the accused persons were given full opportunity to explain their stand. In stating the factual aspect of the evidence it was not necessary from any point of view to mention about the formation of unlawful assembly, and merely on this ground it cannot be accepted that the appellants did not get the opportunity to explain that the charge of formulation of unlawful assembly against them is wrong. In this connection a perusal of Section 313 Cr. P.C. is essential. This provision lays down that for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him the prosecution shall after the witnesses for the prosecution have been examined, and before he is called on for his defence, give opportunity to accused to clear his stand. The detailed questions have been put to the accused persons in view of the above provision and in those questions full opportunity has been accorded to accused persons to explain the circumstances appearing in the evidence against accused persons. There is no modality in the said provision that while giving opportunity to explain the circumstances, it should also be written as to what offence has been committed by accused persons and under what sections that offence is punishable. On the basis of the above analysis there is no infraction of the above provision merely on account of not mentioning in the question put to accused whether they had formed unlawful assembly and murdered Ramjag and caused grievous injuries to injured witness Ramsatan, it also cannot be held as to in any manner the accused persons have been prejudiced on account of omission to put the above question.
32. On the basis of above analysis the decisions cited by learned counsel for appellants require consideration.
33. In Chikranje Ganda (Supra) Hon'ble Supreme Court has laid down as under:
"The first essential element of Section 149 is the commission of offence by any member of an unlawful assembly. The second essential part is that the offence must be committed in prosecution of the common object of the unlawful assembly, or must be such as the members of that assembly knew to be likely to be committed in prosecution of the common object."
". . . . The charge did not mention any such separate common intention, and on the finding arrived at by the learned Judges of the High Court with regard to the common object of the unlawful assembly, none of/the members of the unlawful assembly had the intention to kill Putte Gonda; nor did any of them know that Putta Gonda was likely to be killed in prosecution of the common object of chastisement."
34. In the case of Pandurang (Supra) Hon'ble Supreme Court laid down as under:
"In Pandurang's case we are left with the difficult question about Section 34 of the I.P.C. But before we deal with that, we will set Section 149 I.P.C. aside. There is no charge under Section 149 and as Lord Summer points out in Barendra Kumar Ghosh v. Emperor AIR 1925 P.C.I. at page 7 (A) Section 149, unlike Section 34 creates a specific offence and deals with the punishment of that offence alone, we would accordingly require strong reasons for using Section 149 when it is not charged even if it be possible to convict under that section in the absence of a specific charge, a point we need not decide here. But that apart, there is in our opinion, no evidence here which would justify the conclusion of a common object even if one had been charged."
35. In the case Shambhunath (Supra) Hon'ble Supreme Court held as under:
"Section 149 of the Indian Penal Code is declaratory of the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly or for such offences as the members of the unlawful assembly knew likely to be committed in prosecution of that object. If an unlawful assembly is formed with the common object of committing an offence and if that offence is committed in prosecution of the object by any member of the unlawful assembly, all the members of the assembly will be vicariously liable for that offence even if one or more, but not all committed the offence. Again, if an offence is committed by a member of an unlawful assembly and that offence is one which the members of the unlawful assembly knew to be likely to be committed in prosecution of the common object, every member who had that knowledge will be guilty of the offence so committed. But members of an unlawful assembly may have a community of object up to a certain point, beyond which they may differ in their objects, and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object and as a consequence of this the effect of Section 149 of the Indian Penal Code may be different on different members of the same unlawful assembly Jahiruddin v. Queen Empress I.L.R. 22 Cal 306."
36. In Sarvan Singh (Supra) case the Hon'ble Supreme Court laid down as under:
"The facts of the case disclose that five accused armed with various weapons caused injuries to the deceased which resulted in his death. If a person causes an injury with the intention of causing bodily injury to any person and when the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, the offence would fall under clause 3rdly of Section 300 and would be an offence under Section 302 of the Indian Penal Code. The five accused were convicted by the trial Court for an offence under Section 302 read with Section 149 I.P.C. In order to find the person guilty of offence under Section 302 read with Section 149, the prosecution must establish that the offence was committed by any member of an unlawful assembly in prosecution of the common object of the assembly or such as the members of that assembly knew to be committed in prosecution of the common object. It is, therefore necessary for the prosecution to establish that the common object of the unlawful assembly was to commit an offence under section 302 or that the members of the assembly knew it to be likely that an offence under Section 302 would be committed in prosecution of the common object. The cumulative effect of the injuries was no doubt found to be sufficient in the ordinary course of nature to cause death are traced to particular accused, he will be guilty of an offenee under Section 302 without the aid of Section 149. When the injuries caused are cumulatively sufficient to cause death, it is necessary before holding each of the accused guilty under section 302 read with 149 to find that the common object of the unlawful assembly was to cause death or that the members of the unlawful assembly knew it to be likely that an offence under Section 302 I.P.C. would be committed in prosecution of the common object. In order to determine this question, it is necessary to refer to injuries in some detail."
37. In the above decision, Hon'ble Supreme Court examined the injuries on the person of the deceased, considered those injuries and an aforesaid analysis, came to the conclusion that the type of injuries that have been inflicted on the body of the deceased, from them at the most this conclusion can be drawn that accused persons in the circumstances of the prosecution formed unlawful assembly with the object of inflicting such injuries on account of which the death of the deceased was likely to result. Accordingly accused persons were held guilty under Section 304(1) I.P.C. and the punishment imposed under Section 302 read with Section 149 was altered to one under Section 304(1) read with Section 149 I.P.C. was found proved.
38. In the case Santosh (Supra) Hon'ble Supreme Court affirmed the ratio laid down in Chikarje Gonda (supra) under the circumstances it is not necessary to dwell upon that judgment.
39. On analysis of the above decision conclusion follows that however assemblage of many persons by forming unlawful assembly by going to a place and merely by infliction of injuries by the members of that assembly, resulting in death of the person on account of injuries, all persons cannot be held guilty of forming unlawful assembly with the object of causing death. For proving the said offence it is essential for the prosecution to prove that the common object of all the members of the unlawful assembly was to cause death.
40. Ordinarily it is not possible to adduce oral evidence about the object of accused persons. Only after considering the overall circumstances and on analysis of the injuries sustained by the deceased, this conclusion can follow as to what was their object in forming unlawful assembly.
41. On the basis of the above analysis this Bench has seriously analysed the injuries present on the body of deceased Ramjag. It is clear from the above analysis that the accused persons formed unlawful assembly with the object of causing such injuries which were likely to result in the death of Ramjag. From the over all circumstances and the evidence led by the prosecution the conclusion does not follow that all the accused persons had formed unlawful assembly with the object of causing the death of Ramjag. There is force in the argument of the learned counsel for the appellants that out of the injuries found on the body of the deceased only injury numbers 3, 4 and 5 were fatal and all those injuries had been caused by lathi. In this connection the evidence of Dr. S. K. Gupta who has proved the post mortem is being reproduced even at the risk of repetition.
2. In relation to injury numbers 3, 4 and 5 maxillary bones were fractured.
3. On internal examination the "membranes" under the skull were congested and "anterior cranial fossa was fractured" in relation to injury No. 2 stomach was empty. Small intestines were empty. The large intestines were full.
4. In my opinion the death of the deceased was a result of shock and haemorrhage as a result of above mentioned injuries.
42. There is force in the argument of appellants that all accused persons did not indulge in fatal attack nor caused injuries on any vital part of body. On the analysis of the medical evidence and total evidence the prosecution has merely been successful in proving that the accused persons had formed unlawful assembly with the object of causing such injuries on account of which death was the likely result. However, it has not been established that all the accused persons had formed unlawful assembly with the object of causing death of Ramjag. In this very context despite the possession of pistol with two accused persons, non user of pistol on deceased Ramjag and injured witness Ramsatan, proves the fact that all the accused persons had not formed the unlawful assembly at the spot with the object of causing death of Ramjag. On the basis of above analysis a doubt arises in our minds that all the accused persons formed unlawful assembly at the place of occurrence and attacked with the object of causing death of Ramjag. On consideration of the entire evidence and the injuries found on the deceased only this much is proved that all the accused persons formed unlawful assembly with the object of causing grievous injuries on account of which there was likelihood of the death of Ramjag. On the basis of above analysis we are satisfied that the prosecution has proved the commission of offence under Section 304(1) I.P.C. read with Section 149 I.P.C. and all the accused persons are fit to be punished for the said offence. The prosecution has failed to establish the charge under Section 302 read with Section 149 I.P.C. The conclusion of Sessions Judge contrary to the this Court's conclusion is not liable to be affirmed to that extent. Accordingly all the accused persons are found guilty under Section 304(1) I.P.C. read with Section 149 I.P.C. instead of Section 302 read with Section 149 I.P.C. and for the said offence each appellant is sentenced to 10 years rigorous imprisonment and a fine of Rs. 5000/- and to that extent the judgment of the Sessions Judge is modified in this appeal. The judgment of the Sessions Judge is affirmed in respect of other offences. The prosecution has been successful in proving the guilt of the appellants accused persons in respect of all other offences.
43. The appeal is partly allowed. All the appellants except Mirza, are on bail, their bail bonds are cancelled and it is directed that except Mirya, all other appellants be arrested without delay and in view of the modified judgment they be punished. The other offences for which the appellants have been punished under different sections are proved against the appellants and there is no need for modification as regards them. It is made clear that all the sentences shall run concurrently against the appellants.
44. Accordingly the above mentioned appeal is partly allowed.